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Bill 72, Water Opportunities and Water Conservation Act, 2010 posted for comment

Further to our posting yesterday, Bill 72, Water Opportunities and Water Conservation Act, 2010 passed first reading in the Ontario legislature on Tuesday.

The full text of the bill and its status is available on the Ontario Legislature website.

A proposal notice in respect of the bill has been posted to the Environmental Registry (ERB 010-9940). It is open for comment for 60 days beginning May 18, 2010 and ending July 17, 2010. We expect but have not yet confirmed that the Ministry of the Environment will hold public consultations on the bill at some time in the coming weeks.

Ontario to table Water Opportunities and Water Conservation Act today

The Ontario government is expected to introduce a new water bill today. The Water Opportunities and Water Conservation Act (the "Proposed Act") is expected to create new business opportunities for water technology companies while improving water infrastructure planning and promoting water conservation. Blending economic and environmental objectives in an effort to promote a green economy in Ontario, the Proposed Act has many of the hallmarks of last year's Green Energy Act.

While the text of the Proposed Act is not yet available, several backgrounders have already been posted on the Ministry of the Environment's ("MOE") website. These backgrounders reveal that the Proposed Act will have three main thrusts:

1) Making Ontario the North American leader in developing and selling new technologies and services for water conservation and treatment at home and around the world

The government intends to establish a Water Technologies Acceleration Project ("WaterTAP"), a non-Crown corporation governed by a variety of water industry stakeholders and policy makers. WaterTAP's mandate would include:

• Becoming a trusted source of information about Ontario's water sector by creating an asset map of Ontario water companies, technologies, researchers, users, needs and regulations;
• Being a source of credible advice and guidance to large industrial and municipal water users and governments on emerging technologies, and their applications to conservation efforts;
• Helping to identify opportunities for co-operation, co-ordination and growth within the industry
• Helping to identify research, commercialization and demonstration opportunities; and
• Developing international market intelligence.

It is expected that the government will provide WaterTAP with $5 million in funding over three years.

2) Creating an integrated approach to water infrastructure planning to achieve long-term sustainability

The Proposed Act is expected to promote integrated planning of water use and water infrastructure at the municipal level. Regulations to be promulgated under the Proposed Act would require municipalities to develop long term water sustainability plans. The plans would cover water supply, wastewater and stormwater services. Municipalities would be required to report prescribed performance measures to allow the province to monitor compliance with water sustainability plans.

In March of this year, the government introduced Bill 13, Sustainable Water and Waste Water Systems Improvement and Maintenance Act, 2010. The primary purpose of Bill 13 is to create a new Ontario Water Board, which would be an independent economic regulator of water and waste water services in Ontario (analogous to the Ontario Energy Board). If both the Proposed Act and Bill 13 are passed, it may be the case that the new Ontario Water Board will be charged with approving municipal water plans and tracking performance thereunder.

The government has also indicated that it will continue its Ontario Small Waterworks Assistance Program, which provides capital funding assistance to help small communities improve water conservation and make operations more efficient in their water and wastewater systems.

No doubt the government expects that public investment by municipalities in water infrastructure will help drive demand for private sector products and services in the province. Like the Green Energy Act, the Proposed Act appears to be designed to promote green infrastructure investment as a way of creating green collar jobs in the province. It will be interesting to see if the Proposed Act contains anything like the domestic content requirements of the Green Energy Act, which are intended to keep the broader economic benefit of infrastructure investment captive in Ontario.

3) Helping Ontarians use water more efficiently

The Proposed Act is expected to implement a variety of measures to reduce water consumption in the province.

To address demand by residential consumers, the Proposed Act may amend the Ontario Water Resources Act and Building Code Act, 1992 to introduce more stringent water efficiency standards for consumer products sold in Ontario such as toilets, faucets and showerheads. It may also introduce new water consumption labelling requirements.

Industrial and commercial water takers may also be asked to manage consumption more directly. The Proposed Act may require the MOE to develop a regulation to require non-municipal water takers to develop and adhere to water conservation plans.

We will post a link to the full text of the Proposed Act once it becomes available. As it did for the Green Energy Act, the government will likely undertake significant public consultations as the Proposed Act moves through the legislature. We will provide updates as they become available.

Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009: certain sections and Ontario Regulation 126/10 came into force on April 7, 2010

On April 7, 2010, sections 2, 15, 16, 17, 19, 22 and 23 of the Adjudicative Tribunals Accountability, Governance and Appointments Act, 2009 came into force, along with O. Reg 126/10 created pursuant thereto. These sections of the Act deal with the Tribunal Clustering envisioned in the Act and the ability to promulgate regulations under the Act.

O. Reg 126/10 prescribes the agencies, boards, and commissions for the purposes of the definition of "adjudicative tribunal" in the Act, as well as designates the following adjudicative tribunals as a cluster:

1. Assessment Review Board.
2. Board of Negotiation.
3. Conservation Review Board.
4. Environmental Review Tribunal.
5. Ontario Municipal Board.

Tofino Council Support By-law to Ban Fastfood and Large-format Retail Chains

On March 9, 2010, Council for the District of Tofino (BC) voted to direct staff to draft a by-law that would ban fastfood restaurants and large format retail chains from the municipality. Staff will likely have to be creative to craft a by-law that will not get quashed by the courts.

Further details can be found here: canada.com news story

Bill 76 passes in Québec - Municipal contract allocation rules tightened

Following public outcry in late 2008 regarding contract allocation in the municipal sector and the government's undertaking to remedy the issue, the government of Québec yesterday passed Bill 76 (French Only). The bill effectively amends all of ten major statutes applicable to the municipal sector and aims to ensure greater transparency and predictability to the province's municipal contract allocation process.

This new legislation notably includes:

• an obligation to provide citizens with more information about municipal contracts awarded by a municipality;
• greater leeway for Ministry auditors;
• an obligation for municipalities to provide all information required for the performance of effective audits;
• an obligation not to disclose the names of tendering parties prior to the opening of quotes;
• an obligation for municipalities to adopt contract management policies which include various anti-corruption measures.

More specifically, the bill creates an obligation for municipalities to prepare an estimate for all contracts expected to be in excess of $100,000 and to maintain an easy to understand, comprehensive and accessible list via Internet for all contracts awarded in excess of $25,000. Also, payments representing 10% or more on any such contracts in excess of $25,000 cannot be made prior to publication of basic information regarding the contract, the tendering parties and prices quoted by all parties. Lastly, information regarding the actual cost to execute a contract must be published as soon as possible following completion and all published information must remain available and posted for a period of at least 3 years.

In addition to Bill 76 and as part of its ongoing efforts regarding ethics in the public sector, the government expects to pass another bill during the Québec legislature's 2010 spring session which would also create an obligation for all municipalities to adopt a code of ethics.

Stricter Air Emissions Standards in Ontario

On February 1, 2010, changes to Ontario Regulation 419/05, Air Polution - Local Air Quality (O.Reg. 419/05), came into effect. These changes require industrial facilities to meet stricter air standards for 33 contaminants.

The changes include a reduction in lead and acetone by approximately 75 per cent, the creation of standards for acetonitrile and methyl isocyanate, and a reduction of xylenes by almost two-thirds. The Government of Ontario has indicated that the purpose of these changes is to "better protect air quality and health in local communities".

The news release of the Government of Ontario which provides an overview of these changes, and a list of the 33 contaminants, can be accessed here.

Changes to the Regulations Under the Planning Act (Ontario) Regarding Propane Operations

Changes have been made to the following regulations under the Planning Act (Ontario): Ontario Regulation 543/06: Official Plans and Plan Amendments; Ontario Regulation 545/06: Zoning By-Laws, Holding By-Laws and Interim Control By-Laws; Ontario Regulation 544/06: Plans of Subdivision; and, Ontario Regulation 200/96: Minor Variance Applications.

The changes are intended to support recommendation 14 of the Propane Safety Review, to require that propane operators be notified of applications for official plan amendments, plans of subdivision, rezoning and minor variances where the propane operation's defined hazard distance extends into the area under consideration for the land use application. Definitions for "hazard distance", propane operator" and "propane operation" have been added to each of the above regulations, and changes to the notification requirements in each of the regulations have been made to reflect this recommendation. A propane operation's "hazard distance" is established as part of the propane operation's risk and safety management plan, required by Ontario Regulation 211/01: Propane Storage and Handling under the Technical Standards and Safety Act, 2000 (Ontario).

It is anticipated that Ontario Municipal Board directions for public notice will now include such propane operators. To assist in this process, a drawing in the form of a map or plan signed off by a professional engineer from each propane operation's risk and safety management plan must be forwarded to the relevant municipality, which shows:

• the propane operation including the location and size of the largest vessel and its setback from the front, rear, and side property lines;
• its associated hazard distance;
• visual indication of hazard distance as a circle (radius = hazard distance) around the largest vessel along with a clear marking of the municipalities falling within the hazard distance;
• the address and contact information (municipal clerk or secretary-treasurers of planning board) for each municipality (including if applicable, both lower- and upper-tier municipalities) identified in the drawing;
• GIS co-ordinates, property line information, and the location and name of any roads within or abutting the site to properly identify the propane operation's location, its hazard distance and the municipalities; and
• a key note to the drawing to indicate the facility's municipal address, municipal lot number(s) and concession lines as applicable, and the date the drawing was prepared.

For more information, consult the following Technical Standards & Safety Authority Advisory Sheet FS - 162-09: Advisory Sheet FS - 162-09

Ontario MOE New Approvals Initiative

The Ontario Ministry of the Environment ("MOE") has undertaken a new initiative to modernize the environmental approvals process. Lower-risk activities will have a simplified approval process and approvals for higher-risk activities will be done more quickly. Throughout these new processes, the MOE suggests that environmental standards and protection will be maintained and improved. The objective is to introduce the new approval process over the next three years. Simplified approvals for lower-risk environmental activities will be a rules-based environmental registry process. The higher-risk environmental activities will involve applying for a new Certificate of Approval.

In February, 2010 the MOE will begin formal consultations which will result in discussion documents posted on the Environmental Registry of the Environmental Bill of Rights. Consultations will include a roundtable of experts from the business community and environmental organizations.

Supreme Court of Canada Strengthens Federal Environmental Assessment Provisions

The Supreme Court of Canada found in a decision released on January 21, 2010 that the responsible authority cannot just conduct an environmental assessment screening study for a project listed on the Comprehensive Study List. In a unanimous decision of a 7-member panel in the case of MiningWatch Canada v. Minister of Fisheries and Oceans et al. the court held that the Canadian Environmental Assessment Act and regulations require that the environmental assessment track be determined according to the project as proposed; it is generally not open to a responsible authority to change that level. The responsible authority was free to use any and all federal-provincial coordination tools available, but it was still required to comply with the provisions of the Canadian Environmental Assessment Act pertaining to comprehensive studies. By conducting only a screening study, the responsible authority acted without statutory authority.

A link to the full decision is provided here.

David Crocker

More Environmental Regulation by Municipalities

The Town of Oakville is venturing into the realm of regulating environmental issues. It recently announced that Council will consider a by-law for the reporting and regulation of the amount of fine particulate companies can emit in Oakville. A copy of the proposed by-law can be found by clicking here. This would seem to be part of an increasing trend by municipalities to regulate environmental issues within their boundaries. Toronto has recently implemented restrictions on pesticide use, a requirement for businesses to charge for plastic bags and a Toxics Right to Know by-law that requires businesses to annually file public reports on their environmental releases of 25 toxic substances of "priority health concern".

Oakville's proposed by-law goes much further than the Toronto by-law. If passed in its current form, the by-law would impact proposed and existing facilities with or without Ministry of the Environment Certificates of Approval for air emissions. Existing facilities that may cause or increase a major emission to air and that have an MOE Certificate of Approval are required to apply to the Town within 12 months for a facility-specific approval. The application will require modelling of fine particulate emissions from the facility and in relation to existing levels of fine particulate emissions present in the airshed, mapping, assessment and appraisal. A $25,000 fee is required to accompany the application (ostensibly to pay for a Town peer review of the application). Following peer review, the Town is required to engage in public and agency consultation on the application including a public meeting. Thereafter, Council shall make one of the following decisions:

(a) Where, following consideration of the application, Council concludes that the major emission does not have a significant public health effect on the Town, Council may approve the application, with such conditions as Council considers necessary to meet this standard; or

(b) Where, following consideration of the application, Council concludes that the major emissions has a significant public health effect on the Town, Council shall

(i) refuse to approve the application and, in such case, also decide that in its opinion the applicant's major emission constitutes a public nuisance; or

(ii)approve the application on the basis that the public interest favours allowing the applicant's major emission to occur, with such conditions as Council considers necessary to address the public interest.

One has to wonder how "public interest" will be interpreted.

The regulatory thresholds in the proposed by-law vary considerably from the Toxics Reduction Act (Ontario) and the National Pollutant Release Inventory (Canada) for the precursor pollutants.

It is also worth noting that there is no appeals process and significant fines may be levied if a company fails to comply with the by-law including operating without an approved application. The proposed by-law provides for a fine of up to $100,000 for a first offence. The subsequent offence provisions are vague but would appear to be $10,000 per day or part of a day upon which the offence occurs.

Some have speculated that the by-law may be the latest missive in a dispute between Oakville and the Ontario Power Authority regarding the construction of a new 900-megawatt gas fired power plant in the Town. A review of the Town website confirms that the by-law is in direct response to the new power plant.

According to materials produced by the Town, the rationale behind the by-law is to protect the health of Oakville residents from the effects of fine particulate matters by collecting information on industrial emissions of fine particulate and implementing regulatory controls for "major emitters." However, the by-law does not address other sources of fine particulate emissions, such as vehicular and residential emissions, which account for two-thirds of the fine particulate in the air according to statements made by Oakville representatives.

While the objective may be laudable, the by-law leaves much to the discretion of the Town, and Town Council in particular. For example, the definitions of "assessment", "precursor pollutant" and "volatile organic compounds" can be defined by the Town and it is up to Town Council to determine whether a major emission has a significant public health effect on the Town, the necessary conditions that should be imposed on a major emitter (whether it has a significant public health effect or not) and whether the public interest overrides a significant public health effect on the Town.

Consultation with some affected businesses was held on January 19th. A public session is scheduled for tonight and comments are required by January 25. The matter is expected to proceed to Council only a week later on February 1, 2010.